James Madison, Address of the General Assembly to the People of the Commonwealth of Virginia

23 Jan. 1799Writings 6:333--36

The sedition act presents a scene which was never expected
by the early friends of the Constitution. It was then
admitted that the State sovereignties were only diminished
by powers specifically enumerated, or necessary to carry
the specified powers into effect. Now, Federal authority is
deduced from implication; and from the existence of State
law, it is inferred that Congress possess a similar power of
legislation; whence Congress will be endowed with a power
of legislation in all cases whatsoever, and the States will be
stripped of every right reserved, by the concurrent claims
of a paramount Legislature.

The sedition act is the offspring of these tremendous
pretensions, which inflict a death-wound on the sovereignty
of the States.

For the honor of American understanding, we will not
believe that the people have been allured into the adoption
of the Constitution by an affectation of defining powers,
whilst the preamble would admit a construction which
would erect the will of Congress into a power paramount
in all cases, and therefore limited in none. On the contrary,
it is evident that the objects for which the Constitution
was formed were deemed attainable only by a particular
enumeration and specification of each power granted
to the Federal Government; reserving all others to the
people, or to the States. And yet it is in vain we search for
any specified power embracing the right of legislation
against the freedom of the press.

Had the States been despoiled of their sovereignty by
the generality of the preamble, and had the Federal Government
been endowed with whatever they should judge
to be instrumental towards union, justice, tranquillity,
common defence, general welfare, and the preservation of
liberty, nothing could have been more frivolous than an
enumeration of powers.

It is vicious in the extreme to calumniate meritorious
public servants; but it is both artful and vicious to arouse
the public indignation against calumny in order to conceal
usurpation. Calumny is forbidden by the laws, usurpation
by the Constitution. Calumny injures individuals, usurpation,
States. Calumny may be redressed by the common
judicatures; usurpation can only be controlled by the act
of society. Ought usurpation, which is most mischievous, to
be rendered less hateful by calumny, which, though injurious,
is in a degree less pernicious? But the laws for the
correction of calumny were not defective. Every libellous
writing or expression might receive its punishment in the
State courts, from juries summoned by an officer, who
does not receive his appointment from the President, and
is under no influence to court the pleasure of Government,
whether it injured public officers or private citizens.
Nor is there any distinction in the Constitution empowering
Congress exclusively to punish calumny directed
against an officer of the General Government; so that a
construction assuming the power of protecting the reputation
of a citizen officer will extend to the case of any
other citizen, and open to Congress a right of legislation
in every conceivable case which can arise between individuals.

In answer to this, it is urged that every Government possesses
an inherent power of self-preservation, entitling it
to do whatever it shall judge necessary for that purpose.

This is a repetition of the doctrine of implication and
expediency in different language, and admits of a similar
and decisive answer, namely, that as the powers of Congress
are defined, powers inherent, implied, or expedient,
are obviously the creatures of ambition; because the care
expended in defining powers would otherwise have been
superfluous. Powers extracted from such sources will be
indefinitely multiplied by the aid of armies and patronage,
which, with the impossibility of controlling them by any
demarcation, would presently terminate reasoning, and ultimately
swallow up the State sovereignties.

So insatiable is a love of power that it has resorted to a
distinction between the freedom and licentiousness of the
press for the purpose of converting the third amendment
of the Constitution, which was dictated by the most lively
anxiety to preserve that freedom, into an instrument for
abridging it. Thus usurpation even justifies itself by a precaution
against usurpation; and thus an amendment universally
designed to quiet every fear is adduced as the
source of an act which has produced general terror and
alarm.

The distinction between liberty and licentiousness is still
a repetition of the Protean doctrine of implication, which
is ever ready to work its ends by varying its shape. By its
help, the judge as to what is licentious may escape through
any constitutional restriction. Under it men of a particular
religious opinion might be excluded from office, because
such exclusion would not amount to an establishment of
religion, and because it might be said that their opinions
are licentious. And under it Congress might denominate a
religion to be heretical and licentious, and proceed to its
suppression. Remember that precedents once established
are so much positive power; and that the nation which reposes
on the pillow of political confidence, will sooner or
later end its political existence in a deadly lethargy. Remember,
also, that it is to the press mankind are indebted
for having dispelled the clouds which long encompassed
religion, for disclosing her genuine lustre, and disseminating
her salutary doctrines.

The sophistry of a distinction between the liberty and
the licentiousness of the press is so forcibly exposed in a
late memorial from our late envoys to the Minister of the
French Republic, that we here present it to you in their
own words:

"The genius of the Constitution, and the opinion of the
people of the United States, cannot be overruled by those
who administer the Government. Among those principles
deemed sacred in America, among those sacred rights
considered as forming the bulwark of their liberty, which
the Government contemplates with awful reverence and
would approach only with the most cautious circumspection,
there is no one of which the importance is more
deeply impressed on the public mind than the liberty of
the press. That this liberty is often carried to excess; that it
has sometimes degenerated into licentiousness, is seen and
lamented, but the remedy has not yet been discovered. Perhaps it
is an evil inseparable from the good with which it is allied; perhaps
it is a shoot which cannot be stripped from the stalk without
wounding vitally the plant from which it is torn. However desirable
those measures might be which might correct without enslaving
the press, they have never yet been devised in America. No
regulations exist which enable the Government to suppress
whatever calumnies or invectives any individual may
choose to offer to the public eye, or to punish such calumnies
and invectives otherwise than by a legal prosecution
in courts which are alike open to all who consider
themselves as injured."

As if we were bound to look for security from the personal
probity of Congress amidst the frailties of man, and
not from the barriers of the Constitution, it has been
urged that the accused under the sedition act is allowed to
prove the truth of the charge. This argument will not for
a moment disguise the unconstitutionality of the act, if it
be recollected that opinions as well as facts are made punishable,
and that the truth of an opinion is not susceptible
of proof. By subjecting the truth of opinion to the regulation,
fine, and imprisonment, to be inflicted by those who
are of a different opinion, the free range of the human
mind is injuriously restrained. The sacred obligations of
religion flow from the due exercise of opinion, in the solemn
discharge of which man is accountable to his God
alone; yet, under this precedent the truth of religion itself
may be ascertained, and its pretended licentiousness punished
by a jury of a different creed from that held by the
person accused. This law, then, commits the double sacrilege
of arresting reason in her progress towards perfection,
and of placing in a state of danger the free exercise
of religious opinions. But where does the Constitution allow
Congress to create crimes and inflict punishment, provided
they allow the accused to exhibit evidence in his defense?
This doctrine, united with the assertion, that
sedition is a common law offence, and therefore within the
correcting power of Congress, opens at once the hideous
volumes of penal law, and turns loose upon us the utmost
invention of insatiable malice and ambition, which, in all
ages, have debauched morals, depressed liberty, shackled
religion, supported despotism, and deluged the scaffold
with blood.

The Founders' Constitution
Volume 5, Amendment I (Speech and Press), Document 21http://press-pubs.uchicago.edu/founders/documents/amendI_speechs21.htmlThe University of Chicago Press